ArtII.S1.C2.3 State Discretion Over Selection of Electors

Article II, Section 1, Clause 2:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

The Supreme Court has reasoned that the word “appoint” in Article II, Section 1, Clause 2, confers on state legislatures “the broadest power of determination.” 1 In McPherson v. Blacker, the Supreme Court upheld a state law providing for electors to be selected by popular vote from districts rather than statewide.2 Noting that states could choose from among a variety of permissible methods in selecting electors, the Supreme Court stated:

[V]arious modes of choosing the electors were pursued, as, by the legislature itself on joint ballot; by the legislature through a concurrent vote of the two houses; by vote of the people for a general ticket; by vote of the people in districts; by choice partly by the people voting in districts and partly by the legislature; by choice by the legislature from candidates voted for by the people in districts; and in other ways . . . .3

Although the Electoral College Clause seemingly vests complete discretion over how electors are appointed, the Court has recognized a federal interest in protecting the integrity of the electoral college process. Thus, in Ex parte Yarbrough, the Court upheld Congress’s power to protect the right of all citizens as to the selection of any legally qualified person as a presidential elector.4 In Yarbrough, the Court stated: “If this government is anything more than a mere aggregation of delegated agents of other States and governments, each of which is superior to the general government, it must have the power to protect the elections on which its existence depends from violence and corruption. If it has not this power it is helpless before the two great natural and historical enemies of all republics, open violence and insidious corruption.” 5 In Burroughs & Cannon v. United States, the Supreme Court sustained Congress’s power to protect the choice of electors from fraud or corruption.6

The Court and Congress have imposed limits on state discretion in appointing electors. In Williams v. Rhodes,7 the Court struck down a complex state system that effectively limited access to the ballot to the electors of the two major parties. In the Court’s view, the system violated the Equal Protection Clause of the Fourteenth Amendment because it favored certain individuals and burdened the right of individuals to associate together to advance political beliefs and the right of qualified voters to cast ballots for electors of their choice. The Court denied that the Electoral College Clause immunized such state practices from judicial scrutiny.8

Whether state enactments implementing the authority to appoint electors are subject to the ordinary processes of judicial review within a state, or whether placement of the appointment authority in state legislatures somehow limits the role of state judicial review, became an issue during the controversy over the Florida recount and the outcome of the 2000 presidential election. The Supreme Court did not resolve this issue, but in a remand to the Florida Supreme Court, suggested that the role of state courts in applying state constitutions may be constrained under Article II, Section 1, Clause 2.9 Three Justices elaborated on this view in Bush v. Gore,10 but the Court ended the litigation—and the recount—on the basis of an equal protection interpretation, without ruling on the Article II argument.

McPherson v. Blacker, 146 U.S. 1, 27 (1892). back
Id. back
Id. at 28–29. back
Ex parte Yarbrough, 110 U.S. 651 (1884). back
Ex parte Yarbrough, 110 U.S. 651, 657–58 (1884) (quoted in Burroughs & Cannon v. United States, 290 U.S. 534, 546 (1934)). back
Id. back
393 U.S. 23 (1968). back
The Court stated: “There, of course, can be no question but that this section does grant extensive power to the States to pass laws regulating the selection of electors. But the Constitution is filled with provisions that grant Congress or the States specific power to legislate in certain areas; these granted powers are always subject to the limitation that they may not be exercised in a way that violates other specific provisions of the Constitution . . . . [It cannot be] thought that the power to select electors could be exercised in such a way as to violate express constitutional commands that specifically bar States from passing certain kinds of laws . . . . Obviously we must reject the notion that Art. II, § 1, gives the States power to impose burdens on the right to vote, where such burdens are expressly prohibited in other constitutional provisions.” Id., at 29. back
Bush v. Palm Beach Cnty. Canvassing Bd., 531 U.S. 70, 78 (2000) (per curiam) (remanding for clarification as to whether the Florida Supreme Court “saw the Florida Constitution as circumscribing the legislature’s authority under Art. II, § 1, cl. 2” ). back
Bush v. Gore, 531 U.S. 98, 111 (2000) (Rehnquist, CJ., Scalia & Thomas, JJ.). Relying in part on dictum in McPherson v. Blacker, 146 U.S. 1, 27 (1892), the three Justices reasoned that, because Article II confers the authority on a particular branch of state government (the legislature) rather than on a state generally, the customary rule requiring deference to state court interpretations of state law is not fully operative, and the Supreme Court “must ensure that postelection state-court actions do not frustrate” the legislature’s policy as expressed in the applicable statute. 531 U.S. at 113. back